T.E. v. THE NETHERLANDS (European Court of Human Rights)

FOURTH SECTION

DECISION

Application no. 43462/16
T.E.
against the Netherlands

The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Georges Ravarani,
Jolien Schukking, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 25 July 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Ms T.E., is a Mongolian national, who was born in 1982. At the time of introduction of the application the applicant was living in the Netherlands; she is currently residing in the Czech Republic. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr H.J. Janse, a lawyer practising in Groningen.

2.  The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and his successor, Ms B. Koopman, and the Deputy Agent, Ms K. Adhin, of the Ministry of Foreign Affairs.

The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  The applicant entered the Netherlands in October 2008 together with her son, who was born on 29 October 2003. On 4 December 2014 the applicant filed an asylum application, also on behalf of her minor son.

5.  In her interviews with the immigration authorities on 15 and 19 January 2015, the applicant stated inter alia that her parents had died and that she had one brother, one half‑sister and one half-brother who were living in Mongolia. Her relationship with the father of her son had ended when she had fallen pregnant. As to her reason for applying for asylum she stated that, together with a female friend, she had applied for a job in a factory in China. Her friend got the job and left and the applicant never heard from her again. After this friend had left, the two men who had made the arrangements for her friend told the applicant that she too could leave for China. During this period, the men gave the applicant money and gifts. Towards the end of January 2007 the men said that they had found work for her. She was taken to a house in a suburb of Ulaanbaatar and raped. She was kept there for six months against her will and during this time was forced into prostitution. On one occasion the police came to the house. After having talked to the men, the police went away. She had not asked the police for help as she did not trust them. She eventually managed to escape and with the help of a Chinese client, who found her a travel agent, she and her son left Mongolia.

6.  On 22 May 2015 the Deputy Minister of Security and Justice (Staatssecretaris van VeiligheidenJustitie) rejected the applicant’s asylum application. In so far as the applicant relied on Article 4 of the Convention, claiming to be a victim of human trafficking, the Deputy Minister considered that the applicant had not turned for protection to the authorities of Mongolia. To reiterate this point, he made reference to Rantsev v. Cyprus and Russia (no. 25965/04, ECHR 2010 (extracts)) and Article 8 § 1 (b) of the Council Directive 2004/83/EC of 29 April 2004 on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”). The Deputy Minister also found that the applicant was not eligible for a regular non-asylum-based residence permit on humanitarian grounds. The Deputy Minister found no objective or subjective obstacles entailing that a return would give rise to a “certain degree of hardship” within the meaning of the Court’s case-law under Article 8 of the Convention. The applicant lodged an appeal (beroep) with the Regional Court (rechtbank) of The Hague.

7.  By a judgment of 1 December 2015, the single-judge Chamber (enkelvoudigekamer) of the Regional Court of The Hague sitting in Zwolle rejected the applicant’s appeal.

8.  The applicant’s further appeal (hogerberoep) was rejected on 1 June 2016 by the single-judge Chamber of the Administrative Jurisdiction Division (Afdelingbestuursrechtspraak) of the Council of State (Raad van State) with summary reasoning.

9.  On 4 January 2017 the applicant applied for a residence permit based on European Union (EU) law. She submitted that since 2012 she was in a relationship with a Czech national living in the Netherlands and was thus eligible for a residence permit under Directive 2004/38/EC of the European Parliament and Council of 29 April 2004. On 12 April 2017 the Deputy Minister rejected this application, finding that the alleged relationship had remained insufficiently substantiated. The applicant filed an objection (bezwaar) against this decision with the Deputy Minister. No further information about these proceedings has been submitted.

10.  On 25 April 2019 the applicant’s representative informed the Court that on an unspecified date the applicant had apparently moved, together with her son and her Czech partner, to the Czech Republic, where she was currently staying. A daughter had been born in 2018 from her relationship with her Czech partner. Like the father, this daughter is a Czech national. The applicant’s representative had further learned that in the meantime the applicant’s relationship with her Czech partner had ended.

COMPLAINTS

11.  The applicant complained under Article 4 of the Convention that if she were expelled to Mongolia, she would be at risk of being forced back into prostitution and the Mongolian authorities would be unable to protect her. She further complained under Article 8 of the Convention that it is in the best interests of her minor son to remain in the Netherlands, and that the Netherlands, by denying her and her son residence permits, violated their right to respect for private and family life.

THE LAW

12.  The applicant complained under Article 4 of the Convention, which provision prohibits slavery and forced labour, that if she were expelled to Mongolia, she would be at risk of being forced back into prostitution and the Mongolian authorities would be unable to protect her. She further complained that her removal would be in breach of Article 8, which guarantees the right to respect for private and family life.

13.  The Court notes that, according to information submitted by the applicant’s representative, the applicant has moved to the Czech Republic, where she had given birth to a daughter who – like the father – was a Czech national (see paragraph 10above). Consequently, the factual and legal circumstances forming the basis of the application no longer obtain, as the applicant is no longer at risk of being removed from the Netherlands to Mongolia.

14.  It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 September 2019.

Andrea Tamietti                                        Stéphanie Mourou-Vikström
Deputy Registrar                                                      President

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